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Smt. Shushila Devi Vs. Dhani Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtHimachal Pradesh High Court
Decided On
Case NumberMisc. First Appeal No. 55 of 1963
Judge
Reported inAIR1965HP12
ActsHindu Marriage Act, 1955 - Sections 24 and 28; ;Himachal Pradesh (Courts) Order, 1948; ;Code of Civil Procedure (CPC)
AppellantSmt. Shushila Devi
RespondentDhani Ram and anr.
Appellant Advocate Kanshi Ram, Adv.
Respondent Advocate Harish Chander, Adv.
DispositionAppeal dismissed
Cases ReferredMukan Kunwar v. Ajeetchand
Excerpt:
- .....directed against an order of the learned senior subordinate judge, bilaspur, awarding maintenance pendente lite and expenses of proceedings, to the appellant.2. the appellant had filed a petition, under section 10 of the hindu marriage act, (hereinafter referred to as the act), for judicial separation, from respondent no. 1, her husband. she had, also, moved an application, under section 24 of the act, for the grant of maintenance pendente lite, and expenses of the proceedings. it was alleged, in the application, that the appellant was poor and had no independent income to support herself and for the necessary expenses of the proceedings and that respondent no. 1 was a rich man and his monthly income was rs. 500/- the appellant had prayed that she be granted maintenance of rs. 100/- per.....
Judgment:

Om Parkash, J.

1. This appeal is directed against an order of the learned Senior Subordinate Judge, Bilaspur, awarding maintenance pendente lite and expenses of proceedings, to the appellant.

2. The appellant had filed a petition, under Section 10 of the Hindu Marriage Act, (hereinafter referred to as the Act), for judicial separation, from respondent No. 1, her husband. She had, also, moved an application, under Section 24 of the Act, for the grant of maintenance pendente lite, and expenses of the proceedings. It was alleged, in the application, that the appellant was poor and had no independent income to support herself and for the necessary expenses of the proceedings and that respondent No. 1 was a rich man and his monthly income was Rs. 500/- The appellant had prayed that she be granted maintenance of Rs. 100/- per mensem, pendente lite, and a sum of Rs. 500/-, as expenses of the proceedings.

3. The application was opposed, on behalf of respondent No. 1. It was denied that the appellant was poor and had no independent income for her support. It was alleged that the appellant was managing the entire property of her father, which consisted of considerable lands etc., and that, in lieu of her services, she was being looked after, by him. Respondent No. 1 denied that his monthly income was Rs. 500/-. He pleaded that he was employed as a compositor, in the Government Printing Press, Simla, and his monthly emoluments were Rs. 175.50 nP. He, further, pleaded that he had to maintain his aged mother, his second wife and four children, and that nothing could be saved out of his meagre emoluments and that he was unable to pay anything to the appellant as maintenance and as expenses of the proceedings.

4. The learned Senior Subordinate Judge did not accept the plea of respondent No. 1 that the appellant was managing the property of her father and was being remunerated for her services. He held that the appellant had no independent income and was entitled to get maintenance, pendente lite, and expenses of the proceedings. He awarded the appellant Rs. 15/- per mensem as maintenance, pendente lite, and a sum of Rs. 100/-, as expenses of the proceedings.

5. The appellant, being dissatisfied with the quantum of maintenance and the expenses of the proceedings, awarded to her, has come up in appeal. Her grievance is that the amounts awarded are inadequate.

6. A preliminary objection, that the appeal is not competent, as no appeal lies against an order, passed under Section 24 of the Act, has been taken up, on behalf of the respondents. The preliminary objection, in my opinion, is not well founded. Section 28 of the Act gives a right of appeal, against decrees and orders, made in proceedings, under the Act. That section reads:

'Enforcement of, and appeal from, decrees and orders.

All decrees and orders made by Court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the Court made in the exercise of the original civil jurisdiction are enforced, and may be appealed from under any law for ,the time being in force :

Provided that there shall be no appeal on the subject of costs only.'

7. The contention of the learned counsel for the respondents that the words 'under any law for the time being in force', occurring in the section, indicate that the right of appeal is dependent on some other law and that the section, itself, does not confer any such right, does not appear to be sound. The words, referred to, only mean, that the forum for, and the procedure for the disposal of, appeals, filed under the Act will be determined, under the law, for the time being in force, on the subject. In the case of Himachal Pradesh, these laws will be the Himachal Pradesh (Courts) Order, 1948 and the Code of Civil Procedure. If the words, referred to, are interpreted in the manner, suggested by the learned counsel for the respondents, that the right of appeal will be dependent on some other law, then the proviso to the section will have no meaning and will become wholly redundant. It may be relevant to point out that the words, 'appeal under the Code of Civil Procedure' occurring in Article 156 of the First Schedule to the Limitation Act, were interpreted, by the Hon'ble Supreme Court, as referring to an appeal, the procedure, applicable to which, was prescribed by the Code of Civil Procedure, and not necessarily and only, to an appeal, the right to prefer which was conferred by that Code; vide the majority decision in Vidyacharan Shukla v. Khubchand Baghel, AIR 1964 SC 1099.

8. The question, whether an order, passed,under Section 24 of the Act, is appealable, wasdiscussed, in detail, in Smt. Sobhana Sen v. AmarKanta Sen, AIR 1959, Cal 455, and it was heldthat such an order is appealable. The same viewwas taken in Rukhmanibai v. Kishanlal Ramlal,AIR 1959 Madh Pra 187, AIR 1959 Cal 455, wasfollowed in Harilal Purshottam v. Lilavati Gokaldas, AIR 1961 Guj 202, Dr. Tarlochan Singh v.Smt. Mohinder Kaur, AIR 1961 Punj 508, SunderSingh v. Smt. Manna Sunder Singh, AIR 1962 Punj127, D.S. Seshadri v. Jayalakshmi, AIR 1963 Mad283 and Smt. Snehalata Dansena v. Jagdish Dansana, AIR 1964 Orissa 122. A contrary view thatan appeal against an order, passed under Section 24of the Act, does not lie, was taken in Prithyirajsinghji Mansinghji v. Bai Shivprabhakumari, AIR1960 Bom 315, Saraswathi v. Krishna Murthy,AIR 1960 Andh Pra 30 and Gopendra Nath v.Smt. Prativa Rani, AIR 1962 Cal 455. The preponderance of judicial opinion, it is clear, is infavour of the view that an appeal lies, against anorder, passed under Section 24 of the Act. Forthe reasons already given, and following 1959 Cal-Cutta 455, I hold that an order, passed under Section 24 of the Act, is appealable. The presentappeal is, therefore, competent. The preliminaryobjection, put forth, on behalf of the respondents,is overruled.

9. So far as the merits of the appeal are concerned, no case has been made out for interference with the order of the learned Senior Subordinate Judge. It is not disputed that respondent No. 1 was employed in the Government Printing Press, Simla and that his emoluments were nearabout Rs. 175/-. It was urged, on behalf of the appellant, that besides his salary, respondent No. 1 received income from his land.

From the statement of Ram Swarup P.W. 2, the Patwari, it appears that the land owned by respondent No. 1 was not much and that some of it was uncultivable and that the remaining was in possession of his brothers; respondent No. 1 being in service could not cultivate the land himself. The income from the land to respondent No. 1 was practically nil. The appellant failed to prove that respondent No. 1 had, besides his salary, any other source of income. With his salary of Rs. 175/- per mensem or thereabout, respondent No. 1 had to support a large family at Simla, admittedly an expensive place. Taking into consideration all the circumstances, the amount of Rs. 15/- per mensem, awarded as maintenance pendente lite, by the learned Senior Subordinate Judge, was not unreasonable.

10. It was contended, by the learned counsel for the appellant, that the maintenance of Rs. 15/-per mensem was inadequate, and should not have been less than Rs. 35/- per mensem, even if the income of respondent No. 1 be taken as Rs. 175/-per mensem, if not more. The argument of the learned counsel was that the principle for fixing maintenance, pendente lite, was that it should be at least one-fifth of the income. He placed reliance, for his argument, on the following observations, made in Mukan Kunwar v. Ajeetchand, AIR 1958 Raj 322:

'If the Court comes to the conclusion that the applicant is entitled to maintenance pendente lite and expenses, then it has to consider their quantum. As for maintenance pendente lite Courts generally allow it at one-fifth the income of the respondent after deductions on account of income-tax and provident fund. Under the Indian Divorce Act the maximum alimony pendente lite has been fixed at one-fifth of the net income. In the Hindu Marriage Act no such limit has been prescribed. In the absence of special circumstances maintenance should be allowed at one-fifth of the net income of the respondent.' Page 323.

11. The aforesaid observations only lay down that, generally, one-fifth of the net income should be awarded as maintenance. They do not lay down any hard and fast rule for the award of maintenance. The fixing of maintenance is in the discretion of the Court and depends upon a number of circumstances which may vary in each case. The Court is, of course, to exercise its discretion judicially, on sound legal principles, and not arbitrarily or capriciously. In the present case, it has not been shown that in fixing the maintenance of Rs. 15/- per mensem, the lower Court acted arbitrarily. On the other hand, the learned Senior Subordinate Judge fixed the maintenance after taking into consideration the relevant circumstances. It may be pointed out that there is no evidence as to what was the net income of respondent No. I.

11a. The learned Senior Subordinate Judge has awarded a sum of Rs. 100/-, as expenses of the proceedings, to the appellant. There is no evidence that the expenses would be substantially much more. The only evidence, about expenses of the proceedings, is the statement of the appellant herself. She made a bald statement that she should be awarded Rs. 500/- or Rs. 600/- as expenses. She did not give any details, whatsoever, of the expenses. The learned Senior Subordinate Judge was seized of the proceedings and could form a fair estimate of the expenses. His estimate cannot be lightly brushed aside, especially when there is no evidence that the expenses would be substantially much more.

12. The result is that the appeal fails and is dismissed. In the circumstances of the case, the parties will bear their own costs of the appeal.

13. The stay granted, on 8-11-63 is hereby vacated.


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